filling in the blanks

Arbitrator: City used "circular reasoning" to justify turnarounds

Mayor Michael Bloomberg’s testimony before an arbitrator drove one nail into the coffin of the city’s plans to replace or rehire teachers at 24 “turnaround” schools.

Last week an arbitrator determined that the city violated the city’s contracts with the teachers and principals unions when it moved to replace staff members at the schools. This afternoon the arbitrator, Scott Buchheit, released a detailed explanation of why he ruled the way he did.

The city was trying to use hiring procedures set for closing schools and their replacements. But the unions argued that the turnaround plans were “sham closures” that would not result in new schools. Instead, they argued, the city was unfairly using contractual provisions about “excessing” to remove teachers and administrators it deemed unsatisfactory.

In upholding the unions’ grievance, Buchheit at times turns Bloomberg’s and other city officials’ words against them.

He quotes a 2011 memorandum written by the Department of Education’s chief financial officer, which said, “excessing is not a permissible way to deal with unsatisfactory teachers.”

Yet city officials said they intended to do just that from the start of the turnaround process, Buchheit determined.

When he first announced the turnaround plans during his State of the City Address in January, Bloomberg “repeatedly made clear that the DOE’s new plan concerning the 24 (then 33) schools was based upon the desire to change staffing in the classroom,” Buchheit writes. He quotes Bloomberg saying, “Under this process, the best teachers stay; the least effective go.”

The arbitrator notes that Bloomberg has frequently expressed his distaste for the current process for shedding teachers from schools that are contracting, which is based on seniority, not job performance. “Suffice it to say that at the arbitration hearing the Mayor reaffirmed his dislike,” Buchheit writes.

Buchheit emphasized that he was not passing judgment on the value of the city’s plans for the schools, which State Education Commissioner John King approved in late June. And he said nothing in his decision would prevent the city from continuing with portions of the plans that do not involve using the hiring rules that take effect when schools are closed.

Those rules, outlined in a clause in the teachers union contract known as 18D, call for closing schools to set up hiring committees to review current teachers who apply for jobs at the replacement schools. According to 18D, the committees must hire back at least half of them of the qualified applicants from each school. City officials and school administrators began carrying out 18D procedures in the 24 schools last month with the understanding that the arbitrator could ultimately reverse it.

Department of Education officials had said they were confident that King’s approval of the reform plans would prove that the 24 schools were truly being closed. But Buchheit said King’s decision did not necessarily mean the schools were being closed and replaced with new schools. “New,” he said, typically means “never existing before,” which would not be the case for the 24 schools.

“The evidence here establishes that much would remain the same in the 24 new schools,” he wrote, including the schools’ buildings, student populations, courses, partnering organizations, and, for 18 of them, their principals. He also noted that many of the schools’ new names would still contain the old names, such as August Martin High School, which would change to “The School of Opportunities at the August Martin Campus.”

Deputy Chancellor Marc Sternberg also suggested that the school closings were inauthentic, the arbitrator concludes, when he wrote in a memorandum to principals shortly after Bloomberg’s speech explaining that their schools would be closed “as a technical matter.”

For the schools to be truly new, Buchheit says, much would have to change, including their overall educational visions and leadership. Instead, the biggest change the city cited was the planned staffing change — but that change could only happen, he notes, if the schools were new.

“The DOE cannot use the end result of Article 18D being invoked as justification for why it is permitted to invoke 18D,” Buchheit writes. “I cannot adopt this circular reasoning for the purposes of contract interpretation.”

On Monday, Bloomberg said the city would appeal Buchheit’s ruling because the arbitrator had not yet explained his rationale. But after reading the opinion, city attorney Georgia Pestana said the city will not withdraw its appeal, which it filed in State Supreme Court on Monday. “The arbitrator clearly exceeded his authority,” she said.

The city had argued that the unions’ grievances were not arbitrable at all. In his opinion, Buchheit rejects each of the city’s three arguments for why the grievance should not be subject to binding arbitration.

Buchheit’s full decision is below:

extra time

Expect delays: New York will release statewide test scores later this year

PHOTO: Ann Schimke

Are more students across New York state able to read and do math on grade level? This year, it will take a little longer to find out.

The state doesn’t expect to release scores for this year’s reading and math tests until mid-September, officials announced Tuesday. That’s at least a month later than usual: In recent years, the scores have come out between late July and mid-August.

The delay is caused by the state’s switch from three-day tests to ones that take just two days. The move requires officials to take extra time to figure out how many questions students must answer correctly in order to earn a passing score — a process that must happen every time tests are retooled.

But teachers and schools will not have test data any later than normal, officials said. The raw data which lets teachers know how their students did   will still be released in June, and schools will receive information about how many students passed the test in August.

The lag time between when schools receive information and the public release allows state officials to double check the data and make sure it is correct, officials said.

“The only thing that you have to think about the shift is when we can report out statewide,” said Angélica Infante-Green, a deputy commissioner who oversees instruction (and who has made the news this week because she’s up for the top education job in Massachusetts). “That is the only thing that is different.”

First Person

Mayor de Blasio’s schools-chief search is shrouded in secrecy — but it doesn’t have to be

PHOTO: Demetrius Freeman/Mayoral Photography Office

When Bill de Blasio was running for mayor, he promised to let the public weigh in on his picks for New York City’s schools chief before appointing them.

“We need a chancellor who is presented to the public, not just forced down our throat,” he said on the campaign trail in 2012.

But he changed his tune after being elected, and has decided to keep the chancellor search private. On Tuesday, parents and advocates will hold a rally to demand that de Blasio give them a say in his current search to replace retiring schools Chancellor Carmen Fariña.

If the mayor did open the search to the public, what might it look like?

One option is what seems to be occurring by default: names thrown about largely in the dark, handicapped based on race, gender, and reputation. This messy debate creates more heat than light and advantages those with inside information over ordinary citizens. Hardly the public process advocates have in mind.

But there are other ways. Public superintendent searches are routine for most school districts run by elected school boards. While state law gives New York City’s mayor the authority to single-handedly appoint the chancellor, de Blasio could voluntarily borrow from districts with more open processes.

In those districts, community consensus is usually reached on a job description with desired qualifications. The post is widely advertised, often by a specialized superintendent search firm that conducts an initial review of confidential applications. A list of qualified candidates is presented to the Board of Education, which further culls the still-private list to arrive at three to five finalists.

After the candidates are given a chance to inform their current employers, they are publicly announced and interviews scheduled. In the ensuing weeks, the public and press explore finalists’ records. Members of the screening committee may even visit their home districts. Candidate interviews are often televised or streamed online. The position is then offered after a period of post-interview public comment and board deliberation.

The process can be bumpy, but it gets done. Public confidence is established through participation and a full vetting of the candidates. And because the process is common in most places, the finalists expect this type of scrutiny — they can even use it as an opportunity to renegotiate their contracts by threatening to leave for greener pastures.

So how could de Blasio adapt some of those practices for New York?

One idea is to appoint an independent panel that could submit a list of finalists for the mayor to choose from. The panel could consist of students, parents, educators, and community members, or perhaps each of the five borough presidents.

Another idea is to let the city council weigh in on the candidates. The mayor could nominate his pick for chancellor, who would then face the council’s education committee for questioning before the full council votes on the appointment — just as happens with the president’s cabinet nominations.

It is not too late to institute any of these proposals for a public search.

A thoughtful, transparent process would be a win-win for the mayor, enhancing his progressive credentials while allowing him to remain in the driver’s seat. A public search would also be a win for the city and the next chancellor, who would arrive with more of a popular mandate than if she or he was vetted and hired behind closed doors.

We only have to look back a few years, to the lamentable appointment of Cathie Black, to understand how a unilateral appointment can quickly go off the rails. A public process makes sense, and the moment is now.

David C. Bloomfield is professor of education leadership, law, and policy at Brooklyn College and The CUNY Graduate Center.